When legally separated does a will take precedence over a trust in community property? 3 Answers as of May 04, 2017

Separated spouses own home and other community property. Husband terminally I'll wants half home equity to go to children upon sale of the home.

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LAW OFFICE OF ROBERT I LONG
LAW OFFICE OF ROBERT I LONG | Robert I. Long
If you own the property, the Will takes precedence. If the property is in the trust (e.g., titled in the names of the trustees), then the trust controls. If there was a stated intention to transfer it into trust, but it was never carried out, or there was a defect in the attempted transfer, then it is an open question in California; lots of cases going both directions.
Answer Applies to: California
Replied: 5/4/2017
Law Offices of George H. Shers | George H. Shers
If title to the home has vested in the Trust, then it is no longer part of the Will or probate. Property in a Trust does not have a stepped up basis upon the death of one of the people creating the Trust. You need to figure out what method of ownership is best for everyone. Half of his community property is yours. You probably should speak to a probate attorney to find out what may be best.
Answer Applies to: California
Replied: 4/27/2017
Irsfeld, Irsfeld & Younger LLP | Norman H. Green
Generally, a will does not govern assets in a trust. However, husband probably can revoke the trust.
Answer Applies to: California
Replied: 4/27/2017
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